A Few Thoughts

by Benjamin Wittes

Peggy and Peter, with slightly different emphases, both criticize me for focusing too narrowly on domestic legal policy. As Peggy puts it, by doing so, I “implicitly endorse the notion that the U.S. is unique in its experience of terrorism and the challenge of crafting laws to address it.” It’s a point worth addressing explicitly.

The United States is not the first country to have to reconcile strong antiterrorism steps with the rule of law. Far from it. Yet it is important not to understate or overlook the genuinely unique features of the emerging American confrontation with terrorism–features that make a multilateral approach both necessary and, at times, profoundly difficult, features that also necessitate to some degree the hybridization of law enforcement and military powers that we otherwise try to keep distinct.

To my knowledge, the United States is the first–and only–country ever to face and fight a significant and sustained terrorist threat based halfway around the world that is unreachable by traditional judicial or diplomatic means and that is truly international–in the sense of operating in many nations simultaneously. From the beginning, confronting Al Qaeda has required military operations in remote theaters of conflict, liason with governments all over the world, law enforcement and intelligence operations, and covert actions. Neither the British experience with the IRA nor the Israeli experience with any of that state’s many foes remotely approaches the extension and range the war on terror has required of us. Even before 9/11, for example, the United States had sent cruise missiles into two countries (Afghanistan and the Sudan) and had contemplated hiring tribal mercinaries in Afghanistan to kidnap (and maybe kill) Osama Bin Laden. This is not the same as Spain’s confrontation with ETA. And the fact that a pure law enforcement model might have been adequate against the Red Brigaids gets you only so far.

I draw two conclusions from this. The first is that Peggy and Peter are right; multilateralism is important. Operating internationally to the extent that we do requires cooperation from allies, and you can only get that if you’re willing to play ball with those allies. The other conclusion–and it is firmly in tension with the first–is that sometimes, we’re going to do things that other countries who confront more regional terrorist threats than we do don’t do and don’t like. The reason is simple: We have to, and they don’t. And that goes for our laws too. We have to have laws that regulate behaviors they don’t have to have laws regulating–because they are behaviors in which they don’t engage. You don’t need a detention statute for aliens captured abroad outside of the criminal context if you don’t capture aliens abroad outside of the criminal context. So while I agree that we need to work with multilateral institutions and develop international law as a tool for the tasks at hand, I think there will always be a measure of tension between American needs and those institutions and norms. I’m not sure there’s a way around that problem.

A brief word in response to Kevin’s post: I doubt that anyone has ever before been accused of neoconservativism for supporting international tribunals, as Kevin accuses me for my stray comment noting that international criminal tribunals offer flexibility that the Bill of Rights does not offer. For the record, I was thinking of the hearsay rule in both the Yugoslavia and Tanzania tribunals, which–if memory serves–is more lenient than the rules that govern the much-derided military commissions. My point was simply that to the extent flexibility on such matters is necessary–as I believe it is–international tribunals offer a less controversial way to achieve such flexibility than the ones we have pursued.

One Response

“the United States is the first–and only–country ever to face and fight a significant and sustained terrorist threat based halfway around the world that is unreachable by traditional judicial or diplomatic means. ”

No, such a threat was faced by Japan. On March 10, 1945 330 B29 bombers appeared over Tokyo carrying incendiary bombs based on Napalm. They burned 16 square miles of the city, leaving a million people homeless and killing 100,000 civilians by burning them alive. American policy even before Hiroshima was to terrorize the civilian population to get Japan to surrender. Curtis LeMay noted that if we lost the war, he would have been tried as a war criminal.

On Sept 10, 2001 a force of 45,000 light infantry represented the main body of the Army of Afghanistan. It was trained and organized along the same lines as the first non-Western army in centuries to defeat a modern Western army: the Afghan force that beat the Soviets in the 1980’s. The Soviets and their puppet Afghan allies wore uniforms, but the Afghan rebels did not. So the Taliban Afghan army did not have uniforms, or ranks, or a proper officer corps with clear chains of command. You can say that they were not an army because they didn’t behave like a proper white European christian army, but if you want to hide your racism and bigotry, you can try to dismiss them as “Terrorists”.

So this army and its government declared war on the US. Sounds a lot like The Mouse that Roared. No matter how many light infantry you have, their weapons can only reach a few hundred feet. They could not threaten any neighboring country, let alone a country half way around the world. So when they have a lucky military success, like the attack on the USS Cole, the US government dismisses it as a terrorist attack so they don’t have to admit we are at war with some dumb hick country like Afghanistan.

Bin Laden decided that if the Cole was not going to get a reaction from us, he had to try something bigger. That something would be “the planes operation” on 9/11. His purpose was to force the US to do something really stupid, to invade Afghanistan. Bin Laden may have been the dumbest military commander in modern history, or he may have been blinded by religion and ideology. He believed that if the Americans invaded Afghanistan then they would have to end up defeated just like the Soviets. It didn’t work out as he planned.

The problem is that this was not a terrorist attack. Since the operation involved hijacking commercial jet aircraft, it was an act of piracy, which made it illegal and stripped participants of any lawful status, which then turned the entire operation into mass murder and a war crime. It was not, however, intended to generate terror in the same way as the Tokyo raid or Hiroshima. The planes operation was supposed to make us pissed, not terrorize us. It was illegal, but it was a military strike for a military purpose. To get us to put our army in a location where it could (they hoped) be destroyed by the enemy army.

Like the USS Cole, it was inconvenient for the US government to admit that we had been attacked, even using unlawful means, by a country that declared war on us twice several years earlier and previously engaged in military strikes such as an attack on a US warship. Admitting that would mean that we were the dumbest bunch of fat incompetent morons on the planet. So we declare it to be a terrorist attack because nobody can anticipate random criminal violence, whereas an attack by a country that had declared war long ago would have been inescapable

This is not to say that al Qaeda never engaged in terrorism. The attack on the African embassies was clearly terrorism, because unlike 9/11 there had never been a declaration of war against Kenya or Tanzania, and 3000 citizens of neutral countries were injured in an unlawful attack on embassies. However, if an act of terrorism renders a government, army, or country exclusively a Terrorist organization, then what do we do about Tokyo or Hiroshima? If al Qaeda is a terrorist organization, then the US has also been one for 60 years.

We would be in a real problem if al Qaeda started out like it is today as a force sheltered in the Tribal areas of Pakistan. Then there would never have been a real army and a real country to start the war. Fortunately the Taliban controlled Afghanistan on 9/10. But it is only American ego and self centered stupidity that concentrates on the date we finally pulled our heads out of the sand. International law only requires that one country declare war and commit acts of belligerency, like attacking a warship. At that point there is a state of war under international law, and if the US chose to ignore it for three or four years that is just our dumb policy.

Once war starts with a real army and a real country, it ends only with victory or a peace treaty. Forcing the enemy to reteat and then installing a alternate govenment in their capital city doesn’t end the war. Hell, the Soviets started out controlling the government in Kabul, and look how things turned out for them.

There is no war on Terrorism. The enemy are not terrorists. There is a war against the current army of a government of Afghanistan once in power but now in exile protected by the tribes of the ungoverned territory of Pakistan. This is a force of thousands of light infantry that periodically dispatches small special operations units to attack the enemy in far distant locations. They cannot afford long range bombers and fleets of ships, so they conduct smaller scale attacks. Since they are not a western force, they do not follow our laws and occasionally engage in piracy or terrorism. That makes them an army that does unlawful things, not a bunch of civilian criminals. Only by banning the word “terrorist” from our vocabulary and using more precise, accurate, and descriptive words can we possibly hope to a rational strategy or a meaningful analysis.

7.29.2008
at 1:15 am EST Howard Gilbert

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